Landowners wait to see if judge will halt Bakken pipeline construction

By Austin Harrington, Staff writer (aharrington@amestrib.com)

Saturday

Aug 20, 2016 at 12:01 AM

No decision was made Friday in a hearing that was set to address an emergency motion filed on Aug. 9 to prevent construction of the Dakota Access pipeline across the property of 15 Iowa landowners. One of those is Richard Lamb, who owns property on the Boone and Story County line where the pipeline is expected to cross. The emergency motion seeking an injunction comes as a separate lawsuit remains pending in Polk County District Court.

The lawsuit, which was filed by Bill Hanigan, of the Davis Brown Law Firm in Des Moines, challenges the Iowa Utilities Board’s decision to grant the use of eminent domain to Dakota Access in order to gain rights to property that owners have not signed voluntary easement agreements. The hearing on Friday was to decide if construction on the properties in question could be stopped while the court decision was pending.

“The only question in front of the court today, is whether it should enter a stay, a temporary stay, of the pipeline’s permit to trench and construct this pipeline across 15 specific farms,” Hanigan said in court on Friday. “We’re not seeking a statewide stay or any interruption in the commencement in the construction of the pipeline.”

According to Hanigan, the construction of the pipeline would cause irreparable damage to the farmland where the pipeline would cross, including the destruction of drainage tiles that can take years to develop.

“The record shows that most, if not everyone, of these fields has drainage tiles in it,” Hanigan said.

He added that because of the depth of the tiles and the expected depth of construction activities, it is very likely the drainage system will be disturbed, which could have lasting effects on the property.

According to Hanigan, there are several other reasons, outside of damage to the land, why the court should grant the stay. Those included the purported unlawful use of eminent domain and the lack of in-state benefits provided by the construction of the pipeline.

“Because our state has neither crude oil refineries nor oil wells, and the pipeline serves no one in Iowa and because that … that crude oil may now be exported to foreign countries,” Hanigan said during the hearing held in Polk County District Court in Des Moines. “There is no guarantee of even an indirect benefit from the passage of that crude oil through our state.”

Bret Dublinske, a Des Moines attorney working for Dakota Access, argued that there still would be a benefit for Iowans, even if the oil was not refined in the state.

“The fact that Iowa has no extraction and no refineries means that Iowa is entirely dependent on a robust transportation infrastructure,” Dublinske said.

According to Dublinske, other arguments made by Hanigan should also be disregarded by the court, including the damage that could be done to drainage tiles.

“We heard in the utilities board (hearings) that you’re fixing and changing and augmenting the tile all the time,” Dublinske said. “Some of it’s very old, some of it’s very new. You cannot consistently both argue Dakota Access is going to irreparably harm my soil that hasn’t been changed in 1,000 years and then also say that I’m concerned about my pattern tile that I put in by churning up the soil.”

Dublinske said those arguments cannot co-exist on behalf of the Lamb case.

When both sides had finished presenting their cases, the judge said he would take the necessary time to consider the facts before deciding if he would grant the stay. That could be a couple of days or a period of two or more weeks, according to Hanigan.

Lamb said that time frame gives him cause for concern since Dakota Access is already clearing trees on his property and statements made by Dublinske show that construction could begin on the property by next week.

“I think it’s going to be really tight,” Lamb said. “The pipeline company has refused to tell us when they might start construction, but we heard today it could be a couple weeks, and we’re hearing that the judge may take a couple weeks, so it’s going to be really close.”

Lamb said he is still hopeful that the motion to stop the construction will come through before Dakota Access digs its trench across his farmland, but added that he’ll just have to wait and see what comes first.

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